Citation Nr: 1124977 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 06-10 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a spine disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to February 1983. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied entitlement to service connection for a spine condition. In October 2009 and March 2011, the Board remanded the Veteran's claim for additional development. FINDING OF FACT A preponderance of the competent evidence is against a finding that the current spine disability is related to service. CONCLUSION OF LAW The criteria for service connection for a spine disability have not been met. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). A December 2003 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claim for service connection is denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran's service treatment records (STRs), VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration (SSA) disability determination, and the records considered in that determination, have been obtained. 38 C.F.R. § 3.159 (c)(2). An adequate VA examination was conducted to assess the nature and severity of the Veteran's claimed spine disability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Veteran seeks service connection for a spine disability. He contends that his current disability was caused by a spinal block injection at the L3-4 interspace during a cyst removal procedure in-service that damaged his vertebral cartilage and degenerated the bone in his spine. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran currently has a spine disability involving his cervical, thoracic, and lumbar spine. A July 2008 VA treatment record notes that the Veteran was assessed with osteoarthritis and cervical degenerative changes. A December 2010 VA treatment record notes that the Veteran has a past medical history of cervical radiculopathy. A VA examination was conducted in April 2011, and following a physical examination, the Veteran was diagnosed with spinal stenosis and arthrosis of the cervical spine and arthrosis of the lumbar spine. A May 1980 STR notes that the Veteran complained of low back pain for 1 week. A September 1982 STR notes that the Veteran had an excision procedure and that he was given a spinal hypobaric at L3-4. No examination of the Veteran's spine was conducted during his January 1983 separation examination. As the record shows a current spine disability and treatment during service, the determinative issue is whether these are related VA examinations were conducted in January 2004 and July 2010 to determine the etiology of the Veteran's spine disability, however as respectively noted in October 2009 and March 2011 Board remands, these examinations were inadequate and thus they are assigned no probative value in this decision. A May 2006 private medical opinion conducted for the Veteran's SSA disability claim notes that a review of the records show that he has a reported history of neck and back pain going back to the 1980s and he attributes this to working construction. A May 2006 VA treatment record notes that the Veteran called inquiring as to whether a spinal block he had in 1982 would cause his vertebrae to disintegrate. It was noted that it is unlikely that any injections in his low back could cause degenerative changes in his cervical spine. A July 2006 VA treatment record notes that the Veteran was given an assessment of cervicalgia; the Veteran feels this is service related and it was noted that he was given the telephone number of the RO so he could submit a claim. A March 2009 VA consultation record notes that the Veteran called and related that he had a spinal block in 1982, for a pilonidal cyst procedure and was told at that time that he might have back troubles after the procedure. The Veteran reported that he has a document saying that he might have been over-sedated during the procedure. Recently the Veteran had mild degenerative changes in the cervical spine, but lumbar and sacral x-rays were normal. The Veteran alleges his vertebral body turned to chalk, but the 2008 lumbar x-rays showed normal findings. A December 2010 VA treatment record notes that, subjectively, the Veteran complained of disintegrating vertebra and had surgery in 1984 while in Germany. The treating physician noted that it is unclear what the Veteran's main complaints are and that chronic cervicalgia is probably his main issue. A VA examination was conducted in April 2011. The examiner noted a review of the Veteran's claim file and that he is a Board certified orthopedic surgeon. The Veteran claims that his lower back is far more symptomatic than his neck and is the primary reason he is still homeless. The Veteran shared a VA document noting that he was over-medicated during his cyst excision in 1982. The Veteran contended that his lower back condition is related to spinal anesthetic during service. The examiner noted that the only recorded complication of the Veteran's spinal anesthetic was a spinal headache, which is very common with spinal anesthesia. The Veteran himself reports that he did not have the onset of any back problems until about 1984, after leaving the military. The first episode of back pain occurred in 1984 when he felt a pinch in his lower back while working at an auto shop. He then began doing construction work in 1985 and his back worsened. Following a physical examination, the examiner opined that the Veteran's claim of spinal anesthetic causing his lower back problems has no validity whatsoever with scientific rational thinking, and the Veteran went back to full active duty after his spinal anesthetic. It could only be rationally deducted that if spinal anesthetic was responsible for any back problem or condition, these symptoms would have manifested immediately and not 4-5 years down the road. Additionally, the Veteran began having psoriasis in the late 1980s and 1990s and it is well reported in the literature that members of the population with psoriasis have associated psoriatic arthritis, which can affect multiple joints in the body, including the facet joints of the vertebrae. It is more likely than not that the source of the cervical and lumbar spine conditions is due to a combination of injuries after service. The psoriatic arthritis is felt to have a direct impact on the entire spine as well. There is no evidence whatsoever to link the conditions of the cervical, thoracic, or lumbar spines to any event during service and certainly not the result of any spinal anesthetic for pilonidal cyst surgery. The July 2006 VA treatment record, March 2009 VA consultation record, and December 2010 VA treatment record indicating that the Veteran believes that his current spine disability is related to service is not competent medical evidence. A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, this evidence is given no probative weight regarding whether the Veteran's current spine disability is related to service. To the extent that the Veteran is asserting or implying a continuity of symptomatology from service to the present, it is noted that he is competent to report observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). A July 2006 VA treatment record notes that the Veteran reported spine pain that began 25 years ago; however, other medical evidence of record, including the May 2006 private medical opinion and the April 2011 VA examination report, indicates that the Veteran himself reported that he did not have back or spine pain until he began working in auto shops and construction following service. The Veteran's assertions of a continuity of back or spine symptoms since service are not credible in light of the contradictory statements he has made. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements). Furthermore, if his symptoms were continuous since active service, it would be reasonably expected that he would have raised his claim or sought treatment for them sooner. The negative evidence in this case outweighs the positive. As a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on matters as complex as the diagnosis or etiology of his claimed disability and his views with respect to those matters are of no probative value. See Layno supra. The Veteran's opinion cannot and does not outweigh the competent medical evidence of record, including the April 2011 VA examination report, which clearly shows that his current spinal disability is not related to service. See Jandreau, supra. The Board is not free to substitute its own judgment for that of an expert as the April 2011 VA examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As the first contemporaneous medical evidence of a diagnosis of arthritis of the spine is well after the one-year presumptive period from discharge from service; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claim for a spine disability; there is no doubt to be resolved; and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for a spine disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs